October 2009 Archives

HIPAA enforcement will be strengthened by an interim final rule posted today by the U.S. Department of Health and Human Services (HHS). The new rule increases significantly the penalties that may be imposed for HIPAA violations under the Health Information Technology for Economic and Clinical Health (HITECH) Act. HHS believes that the higher penalties will increase compliance with the privacy protections of the Health Insurance Portability and Accountability Act.

Governor Granholm's proposal to impose the Quality Assurance Assessment Program ("QAAP") fee (A.K.A tax) on physicians--HB 5386--was defeated in the Michigan Senate by a 32-4 vote on Wednesday, October 28. The bill proposed that "the Department shall assess and collect a quality assurance assessment on physicians...at a rate of 3% of the gross revenue of the physician or entity related to a physician." The purpose of the bill is to help raise more federal monies to support Michigan's Medicaid program, as well as to alleviate a $2.8 billion budget deficit for 2010.

Wisconsin Physician Services (WPS) issued guidance yesterday clarifying the importance of physician signatures on dictated notes, which emerged as a national issue identified by the Comprehensive Error Rate Testing Program (CERT). Regardless of whether dictation is given directly to a scribe, or via an electronic recording that is then transcribed, physicians must review the record and issue a signature.

The identification of the dictating physician is usually indicated on the resulting medical records, and confusion arose over whether that identification was sufficient. The guidance issued by WPS compares the transcription of an electronic record to the taking of dictation; both processes are subject to error on the part of the scribe or transcriber. Therefore, physicians must review the medical records, ensure that there are no errors, and issue a handwritten or electronic signature.

A handwritten signature should be legible, and an electronic signature must be easily identified as a valid signature affirming that the physician has completed a review.

In Little Rock, Arkansas, Dr. Jay Holland, Sarah Miller, and Candida Griffin were sentenced this week for violating the Health Insurance Portability and Accountability Act (HIPAA). According to the U.S. Department of Justice press release, the three individuals plead guilty on July 20, 2009 "to misdemeanor violations of the health information privacy provisions [of HIPAA] based on their accessing a patient's records without any legitimate purpose." The U.S. Attorney for the Eastern District of Arkansas stated that she hoped that the sentencings would "send the message that the HIPAA protections apply to every person in the community."

Holland was sentenced to one year of probation, a $5000 fine, and 50 hours of community service while Miller and Griffin were sentenced to a $2500 and $1500 fine, respectively.

Representative John Adler's proposed Red Flags exceptions--H.R. 3763--passed in the House on October 23. Passing with a 400-0 vote, the bill exempts small businesses with 20 or fewer employees that meet certain requirements. The bill will next be sent to the Senate for vote. Notwithstanding this legislation, the Red Flags Rule is still set to become effective on November 1, 2009.

Representative John Adler introduced H.R. 3763 on October 8 to amend the definition of "creditor" in the Fair Credit Reporting Act to reflect the following exclusions:

(A) a health care practice with 20 or fewer employees;
(B) an accounting practice with 20 or fewer employees;
(C) a legal practice with 20 or fewer employees; or
(D) any other business, if the Commission determines, following an application for exclusion by such business, that such business--
(i) knows all of its customers or clients individually;
(ii) only performs services in or around the residences of its customers; or
(iii) has not experienced incidents of identity theft and identity theft is rare for businesses of that type.

The bill has currently been referred to the House Committee on Financial Services.

Alleging False Claims Act, Stark Law, and Anti-Kickback violations, the University of Medicine and Dentistry of New Jersey (UMDNJ) settled with the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) for $8.3 million--double what Medicare paid for the allegedly improper referrals. UMDNJ is licensed as a Level I Trauma Center. For UMDNJ to maintain its Level I license, it is required to meet a threshold of cardiac procedures it performs. According to the government, because UMDNJ fell below this threshold in 1995, it entered into agreements with cardiologists that involved inducing those cardiologists to refer their cardiac procedures to UMDNJ. Additionally, the DOJ settled with nine other cardiologists involved in the alleged scheme, two of who plead guilty to criminal embezzlement charges.

Chairman of the UMDNJ Board of Trustees describes the settlement as a "significant next step" in UMDNJ's evolution toward operating "under the highest ethical standards."

The Department of Justice issued a Press Release regarding this settlement.

The OIG released its Work Plan for the 2010 fiscal year (FY) this week, to be effective beginning October 2009. The OIG's Work Plan "describes the specific audits and evaluations that [the OIG has] underway or plan[s] to initiate in the FY ahead....The Work Plan also provides focus areas for [the OIG's] investigative, enforcement, and compliance activities." The OIG Work Plan includes:
- Reviewing Part B payments for services rendered in home health episodes;
- Reviewing claims submitted by home health agencies to determine the accuracy of the billing codes and to identify miscoding patterns;
- Determining whether payment methods for home health agencies should be adjusted by reviewing the home health agency cost data and profitability trends;
- Reviewing CMS' role and procedure in ensuring HHA submits accurate OASIS data;
- Reviewing hospice claims to see the trends in hospice utilization;
- Examining the payment systems and payment rates for ambulatory surgery centers;
- Determining whether Medicare-enrolled IDTFs satisfy the Medicare enrollment standards;
- Determining what kinds of physician self-referrals are permissible to DME suppliers in which the physician holds an ownership interest in that supplier;
- Reviewing DME claims submitted under Medicare Part B and determining whether those claims were submitted pursuant to Medicare's requirements;
- Verifying that CMS has implemented the OIG recommendations from August 2008 regarding the medical review of claims for the CERT program DME review for the fiscal year of 2006;
- Reviewing the DME Medicare fee schedule and determining whether the DME items that were originally classified are properly classified according to current, updated standards and payment methodologies;
- Reviewing CMS' oversight of the RAC program and CMS' guidance and training pertaining RACs and appropriately reporting potential instances of fraud;
- Reviewing hospice beneficiaries' drug claims under Medicare Parts A and D and identifying controls to prevent duplicate reimbursement under both Parts;
- Reviewing home health agency claims to determine if providers have met the eligibility criteria for home health services;
- Investigating instances of false claims;
- Investigating businesses that have allegedly violated the Federal Anti-Kickback Statute;
- Examining CMS' oversight in the breach notification requirements and CMS' steps in preventing medical identity theft;
- Reviewing incentive payments for adopting electronic health records and CMS' safeguards against payments made in error; and
- Assessing the adequacy of the IT security controls in place pursuant to the health information technology standards enumerated in the Recovery Act.

When a beneficiary elects hospice care, s/he waives any Part B coverage related to that hospice care except for services rendered by an "attending physician." An attending physician is defined as either a doctor of medicine, doctor of osteopathy or a nurse practitioner who is identified by the beneficiary as having the most significant role in the beneficiary's determination and delivery of medical care.

The beneficiary may designate and use an attending physician, who is not employed by the hospice, for professional services furnished in addition to the services of hospice-employed physicans. The professional services of an attending physician that are reasonable and necessary for the treatment and management of a hospice patient's terminal illness are not considered hospice services. Provided he or she does not furnish the services under a payment arrangement with the hospice, the services of the attending physician are billed to Medicare Part B with the GV modifier-- "Attending physician not employed or paid under agreement by the patient's hospice provider." If a substitute or locum tenens physician provides services, the services are billed by the designated attending physician under the reciprocal or locum tenens billing instructions by use of modifier GV in conjunction with either the Q5 or Q6 modifier. Payment is made to the attending physician or beneficiary, as appropriate, based on the payment and deductible rules applicable to each covered service. Services not related to the hospice patient's terminal condition are coded with the GW modifier--"Service not related to the hospice patient's terminal condition."

If a private attending physician furnishes services related to a hospice patient's terminal condition under a payment arrangement with the hospice, such services are considered "hospice services" and are billed by the hospice to Medicare Part A. Hospice physician services are paid by the hospice intermediary, Part A, at 100% of Medicare approved charges.

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